XXI WALLACE.

21 Wall. 1-17, 22 L. 499, THE LADY PIKE.

Admiralty.— While appeals in admiralty are not favored where both subordinate courts have concurred on the merits of the controversy, the decree will be reversed in a clear case, p. 8.

Cited and applied in The City of Hartford, 97 U. S. 328, 24 L. 932, holding error of fact, clearly established, ground for reversal, despite concurrence of lower courts; The Coquitlam, 77 Fed. 748, 48 U. S. App. 111, applying rule to Circuit Court of Appeals.

Distinguished in The Richmond, 103 U. S. 543, 26 L. 451, refusing reversal where evidence was conflicting.

Shipping. Masters and pilots are bound to know both the dangers and facilities of the navigation which they undertake, p. 13.

Cited and relied upon in The M. J. Cummings, 18 Fed. 183, where tugmaster knew tow was unseaworthy and lake was rough, collecting cases; The Narragansett, 20 Fed. 398, holding tug lia for negligent towage, resulting in wreck; Pettie v. Boston TowBoat Co., 49 Fed. 466, 1 U. S. App. 57, holding tug liable for wreck caused through captain's unfamiliarity with channel; The Jonty Jenks, 54 Fed. 1023, holding tug liable for accident caused by attempt to pass narrowest space between piers; Vessel Owners' Towing Co. v. Wilson, 63 Fed. 631, 24 U. S. App. 49, where tugmaster failed to allow for submerged bridge abutment; The J. H. De Graff, 66 Fed. 351, where tug, using 250-foot hawser, passed within fifteen feet of pier, allowing it to collide therewith; Brady v. Jefferson, Houst. 81, holding tugowners able for damage caused to other vessel by negligent handling of tow; State v. Turner, 34 Or. 178, 55 Pac. 93, holding master bound to know obstructions, contour of bottom, currents, course and depth of channel, tides and winds.

Cited, but not applied, in The E. A. Shores, Jr., 73 Fed. 348, deciding case under local statute.

Carriers of merchandise, by water, are common carriers, and liable as insurers, p. 14.

Cited in Liverpool S. S. Co. v. Phenix Ins. Co., 129 U. S. 437, 32 L. 790, 9 S. Ct. 470, holding steamship company liable for injury to cotton, caused by negligent wrecking; The Georg Dumois, 88 Fed. 540, holding ship liable for damage to cargo, caused by delay due to owner's carelessness.

Shipping. First duty of a marine carrier, and one implied by law, is to provide a seaworthy vessel, well furnished with proper

870

motive power, properly manned and equipped with reference to the exigencies of the voyage, and in charge of a competent and skillful master, p. 15.

Shipping.— In absence of special agreement to contrary, in bill of lading, or otherwise, master's duty extends to all that relates to loading, safe-keeping, transportation and delivery of goods, p. 15. Shipping. Ship, as well as owners, is liable for faithful performance of master's duties towards cargo, p. 15.

Shipping.-Defense of inevitable accident can only be sustained where neither party is at fault, p. 17.

Cited in extended note in 41 Am. Dec. 287, on perils of the sea.

Towage. Owners of towing steamer held liable for loss of wheat barge, due to master's ignorance of currents and course, pp. 16-17.

Miscellaneous.-The Lady Pike, 96 U. S. 463, 24 L. 673, referring to former decision of same case.

21 Wall. 17-33, 22 L. 515, JEROME v. MCCARTER.

Appeal and error.- Under sections 22, 23, judiciary act of 1789, amount and sufficiency of sureties on supersedeas bonds is left to discretion of court below, p. 28.

Cited in Hickox v. Elliott, 11 Sawy. 655, 28 Fed. 119, fixing bond to cover decree, costs, interest, and delay damages with margin; Duncan v. Mobile & Ohio R. R., 3 Woods, 601, F. C. 4,139, fixing bond on appeal from foreclosure of railroad.

Appeal and error.- Since 1867, security on appeal from money judgments must cover amount thereof, with damages for delay, and costs; on appeal in real actions, or where property is in custody of court, it must be sufficient to secure sum recovered for the detention, with costs and delay damages, the sufficiency to be decided by the trial judge, p. 30.

Cited and relied upon in Ex parte French, 100 U. S. 5, 25 L. 530, holding amount of bond to cover detention damages discretionary with judge allowing appeal; Supervisors v. Kennicott, 103 U. S. 557, 26 L. 488, holding, on appeal from foreclosure, security limited to damages from delay, not covering interest or unpaid balance; Kountze v. Omaha Hotel Co., 107 U. S. 389, 390, 27 L. 614, 2 S. Ct. 921, 922, holding foreclosure appeal bond not security for amount of decree, interest, or balance, but for damages for delay; The Brantford City, 32 Fed. 325, holding security for delay damages, appeal costs and interest, sufficient in admiralty appeal; Rosenstein v. Tarr, 51 Fed. 370, holding bond covers decree in appeal from money judgment; Richardson v. Richardson, 82 Mich. 307, 46 N. W. 671, ordering bond to cover amount of money judgment, unsecured by mortgage; Rose v. Richmond Min. Co., 17 Nev.

76, 27 Pac. 1117, holding loss from inability to work ore, during appeal, to be considered in fixing bond; Tarpey v. Sharp, 12 Utah, 389, 43 Pac. 105, bond on ejectment appeal should cover rents and profits pending appeal; dissenting opinion in Kountze v. Omaha Hotel Co., 107 U. S. 401, 27 L. 618, 2 S. Ct. 931, holding security on foreclosure appeal covers rent received by appealing mortgagor pending appeal, majority contra. See 38 Am. St. Rep. 715, mono

graphic note.

Appeal and error.- When security on appeal bonds, sufficient when accepted, ceases to be so, appellate court may, upon application, order additional security, p. 31.

Reaffirmed in Williams v. Claflin, 103 U. S. 753, 26 L. 606, modifying supersedeas to allow sale of mortgaged property, on fluctuation of security; Williams v. Williams, 19 Colo. 21, 34 Pac. 286, and American Brewing Co. v. Talbot, 135 Mo. 173, 36 S. W. 658, and Florida, etc., Fence Co. v. Branham, 32 Fla. 290, 13 So. 281, requiring new bonds, sureties having become insolvent since acceptance below; Hudson v. Parker, 156 U. S. 287, 39 L. 427, 15 8. Ct. 454, arguendo, justice ordering bail to be taken, may approve bond; generally in Morrin v. Lawler, 91 Fed. 694, holding, after perfection of appeal, motion for substitution of bond must be addressed to appellate court.

Cited, but application refused, in Martin v. Hazard Powder Co., 93 U. S. 302, 23 L. 885, holding subsequent insufficiency not proved; Harwood v. Dieckerhoff, 117 U. S. 200, 29 L. 887, 6 S. Ct. 670, where depreciation of security was not sufficiently shown; Mexican Construction Co. v. Reusens, 118 U. S. 53, 30 L. 78, 6 S. Ct. 45, holding circumstances unchanged since acceptance of bond.

Appeal and error.— Upon facts existing at time appeal bond was accepted, action of judge, within statute and rules of practice, is final, and presentation to him of every possible fact at that time will be presumed, p. 31.

Cited and applied in New Orleans Ins. Co. v. Albro Co., 112 U. S. 507, 28 L. 809, 5 S. Ct. 289, holding lower court's acceptance of bond, sureties being bound severally for specified parts of obligation, not reviewable; Mexican Construction Co. v. Reusens, 118 U. S. 54, 30 L. 78, 6 S. Ct. 946, refusing to require additional sureties, lower court having accepted bond with one only; Draper v. Davis, 102 U. S. 371, 26 L. 122, arguendo, power of lower court exhausted upon taking security and signing citation.

Distinguished in Railroad Co. v. Schutte, 100 U. S. 646, 25 L. 605, setting aside approval of bond, procured by fraud; Tampa Street Ry. v. Tampa, etc., R. R., 30 Fla. 410, 11 So. 910, vacating supersedeas where acceptance was obtained through misrepresentation.

Miscellaneous.- Dueber, etc., Co. v. Fahys, etc., Co., 45 Fed. 698, incidentally.

21 Wall. 33-36, 22 L. 476, DOANE v. GLENN.

Depositions. Objections to reading deposition relating to de fects which might have been obviated by retaking, but not to the testimony therein, must be noted when deposition is taken or be presented by motion to suppress before trial, p. 35.

Cited and followed in Howard v. Stillwell, etc., Mfg. Co., 139 U. S. 205, 35 L. 150, 11 S. Ct. 503, holding objections to informality in taking deposition, waived, unless made at time; Stegner v. Blake, 36 Fed. 184, holding objection that certificate did not state cause of taking, waived because not made before trial; M'Claskey v. Barr, 48 Fed. 138, holding technical objections to testimony, not taken at hearing, deemed waived; Edwards v. Heuer, 46 Mich. 97, 8 N. W. 718, where objection to certificate was first made at trial; Murray v. Larabie, 8 Mont. 213, 19 Pac. 576, holding objection to fatally defective certificate, waived by failure to make before trial; Sugar Pine, etc., Lumber Co. v. Garrett, 28 Or. 170, 42 Pac. 129, and American Publishing Co. v. Mayne Co., 9 Utah, 321, 34 Pac. 248, both holding objection to certificate must be made before trial; Electric, etc., Co. v. Consolidated Light, etc., Co., 42 W. Va. 584, 26 S. E. 188, holding objection to retaking deposition, waived because not made before trial.

21 Wall. 36-41, 22 L. 527, GARDNER v. BROWN.

Trusts. One appointed trustee of real property, but failing to give bond as required by statute, is not thereby divested of the trust, p. 41.

Mortgages. In action to foreclose, under trust deed, the trustee, although he has not qualified by giving bond as required by statute, is a necessary party, and removal should be refused where he is a citizen of the same State as plaintiff, p. 41.

Cited and applied in Myers v. Swann, 107 U. S. 548, 27 L. 584, 2 S. Ct. 687, holding trustees denying trust necessary parties; Thayer v. Life Association, 112 U. S. 720, 28 L. 866, 5 S. Ct. 357, Donohoe v. Mariposa Land Co., 5 Sawy. 167, F. C. 3,989, and Mitchell v. Tillotson, 11 Biss. 327, 12 Fed. 738, all holding trustee necessary party and his citizenship material in determining jurisdiction; Chester v. Chester, 7 Fed. 3, remanding removed case, trustee being necessary party and co-citizen of plaintiff; Shipp ▼. Williams, 62 Fed. 6, 22 U. S. App. 380, holding trustee, although he has refused to act, necessary party in foreclosure; Helm v. Barnes, 1 Lea, 390, holding trustee, although not yet qualified, necessary party in beneficiaries' bill to assert rights against strangers. Cited generally in Price v. Foreman, 11 Biss. 331, 12 Fed. 803, holding executors necessary parties in action to set aside will, and their citizenship material to jurisdiction; Consolidated Water Co. v. San Diego, 93 Fed. 852, holding water company necessary party

in suit by its mortgagee to restrain city from lowering rates; Burch v. Davenport, etc., R. R., 46 Iowa, 453, 26 Am. Rep. 153, refusing removal where one defendant was co-citizen with plaintiff.

Distinguished in Chester v. Wellford, 2 Flipp. 353, F. C. 2,662, holding trustee not indispensable party in action to cancel notes secured by trust deed; Swann v. Meyers, 79 N. C. 102, granting removal where defendants, residing in State, were not necessary parties to final determination; Sidney Stevens Impl. Co. v. South Ogden, etc., Co., Utah, —, 58 Pac. 844, trustee of trust deed not necessary party to foreclosure, because not vested with title. Miscellaneous.- Steinkuhl v. York, 2 Flipp. 382, F. C. 13,356, holding owner and lienholder necessary parties in action to remove cloud from title.

21 Wall. 41-43, 22 L. 476, VANNEVAR v. BRYANT.

Removal of causes. An action upon contract, in which plaintiff and several defendants are citizens of State in which action is brought, is not removable to Federal court by non-resident defendants, p. 43.

Cited and applied in Meyers v. Swann, 107 U. S. 547, 27 L. 584, 2 S. Ct. 686, where one necessary defendant resided in plaintiffs' State; American Bible Society v. Price, 110 U. S. 63, 28 L. 71, 3 S. Ct. 441, remanding action to set aside will, where executors were residents of plaintiff's State; Cambria Iron Co. v. Ashburn, 118 U. S. 58, 30 L. 61, 6 S. Ct. 930, remanding, where some defendants resided in plaintiffs' State; Young v. Parker, 132 U. S. 271, 33 L. 353, 10 S. Ct. 77, holding proper citizenship must exist when action is brought; Hanrick v. Hanrick, 153 U. S. 195, 38 L. 687, 14 S. Ct. 836, remanding, where several defendants resided in plaintiffs' State; Thouron v. East Tennessee, etc., Ry., 38 Fed. 678, and Anderson v. Bowers, 43 Fed. 322, both holding all defendants, to remove on ground of local prejudice, must be citizens of another State (but see 35 Fed. 853, 1 L. R. A. 688, and n., post); generally in M'Donald v. Seligman, 81 Fed. 755, and Baltimore, etc., R. R. v. P., W. & Ky. R. R., 17 W. Va. 860, both holding facts upon which right to removal is based, must be made to appear to satisfaction of State court; Henen v. Baltimore, etc., R. R., 17 W. Va. 895, holding order of lower State court for removal, reviewable by appellate State court.

Distinguished in Wheelan v. New York, etc., Co., 35 Fed. 853, 1 L. R. A. 68, and n., holding removal for local prejudice not within rule, under act of March 3, 1887, repealing former act (but see 38 Fed. 678, supra); Swann v. Meyers, 79 N. C. 102, holding resident defendant not a necessary party and granting removal.

Removal of causes.- Cause cannot be removed to Federal court pending motion for new trial, p. 43.